The Case for Community Marks

Executive summary: In recommending the establishment of Community Marks, I propose that an alternative to trademarks is needed for community-based projects like Bar Camp and Microformats. The need for Community Marks stems from the non-commercial focus of these projects and the way these projects spread virally on the web. While we need to protect the integrity of a brand like Bar Camp, licensing and legal enforcement is too costly in terms of time and money to make sense for loosely joined communities. Therefore, if we can leave enforcement up to the community via the Community Marks denotation, we will be able to serve the vital function of identifying a community’s work and projects without burdening that community with undue legal process and enforcement costs.

You can’t imagine how excited I am to write this post… not only is it an important one, but I’ve just gotten my busted laptop back and wow (is this bad?) I feel like I have my life back again. Never really thought I’d say such a thing, but eet’s true I teenk.

Let’s get into it: I’m not a lawyer and I will never pretend to be, but that doesn’t really matter as far as I’m concerned and I’ll tell you why.

When it comes down to it, law is totally made up by humans. It’s just a system of conventions that codify certain beliefs about morality and righteousness within the context of a given civilization, society or group.

Laws weren’t and aren’t always penned in Congress, either. In fact, unbeknownst to most school children, that timeless classic that tells of the “life of a bill” is simply a story that you can choose to agree or disagree with. For the purpose of this discussion, I disagree with its fundamental premise that all laws (and rules governing trade and so on) must go through that process to become “real” or as enforceable as any other law.

Sure, this could be an academic or artistic inquiry on my part, whatev, that’s fine. Today, I’m interested in a little armchair-legislation, the kind that has no teeth or legal basis in our current legal system, but nevertheless solves an important need with which existing law currently doesn’t deal: the need for community owned and enforced marks (as in an open alternative to trademarks).

I won’t belabor where this all came from, but suffice it to say that the SpreadSpread campaigns (Spread Firefox, et al) have repeatedly encountered problems when commercially valuable trademarks need to be put in the hands of a community and the public domain is not an option.

The view heretofore has been that this is necessary, with dubious restrictions that protect the ability of the trademark owner to enforce their brand and indeed ensure the perceived quality that their logo, wordmark or servicemark represents.

In the case of Firefox or Flock, even though they are the result of countless hours of volunteer effort, you still need to be able to prevent some nefarious hacker in the remote expanses of cyberspace from releasing a spyware-laden version of either browser and calling it by the name of the official binary. Allowing such behavior could conceivably cause confusion in the mind of the consumer and potentially lead to an economic impact on the brand’s reputation. Therefore, it would be legitimate (and legal) for either Flock or Firefox to go after the offender and stop them from continuing such behavior. Just check out the DMCA on the lengths one can go to protect their IP in such a situation. Seriously.

And that’s why trademark was created: to make sure the people who own a brand can enforce their dominion over it to keep making money off it unfettered.

Um..

I mean.. uh… “to guarantee the integrity of a brand’s goods or services in order to prevent confusion in the marketplace.” (Stupid Freudian slips!)

So anyway, that’s all good and well, but it’s not enough. And it doesn’t address the issue I’m trying to resolve: the need for a mark that is owned, operated and enforced by a community that isn’t driven by purely economic interest. Instead, the motivation derives from the desire to uniformly represent their work product as the output of a specific community. Period.

So the case for community marks is primarily necessitated by projects like Bar Camp, which collectively is the product of scattered cadres of individuals the world over who take ownership of the brand on behalf of the larger community. None own the name or mark outright, instead they agree to hold an event based on Bar Camp, espousing its primary principles; in that way, they are extending the reach of the mark and therefore have earned a de facto license to use the Bar Camp logo and moniker. Now, should another separate event be created with primarily commercial gain in mind that uses the Bar Camp brand and co-opts the integrity of the name, it would be up to the community to go after and enforce the brand, either through blogging, boycotting or other subversive means. We simply don’t have the financial or temporal resources to go after such an offender, but we do have a small army whose response could be economically devastating to that effort.

With Creative Commons, you’ve got this idea that maybe not everything needs to be owned exclusively by default… Maybe you can allow for some distributed ownership of intellectual work in order to grease subsequent derivative creative expression. And maybe both the community and the original author will see benefits.

With Microformats, they’re leveraging community behavior to standardize the way we mark up our documents for the benefit of everyone. No one owns Microformats, though Tantek et al do a pretty good job shepherding the community. Nevertheless, the result of their work is something that the community takes pride in, identifies with, would be willing to expend individual effort to defend the integrity of.

Microformats are basically mini-laws for marking up your documents. Hell, go ahead and break them, do your own thing, there’s no punishment because the community doesn’t see punishment as being in line with its sense of justice. But joining up and following the rules, in this case, will actually bring you some benefits and not to mention, make your life (if you’re a user of the web, anyway) a little bit better.

So let’s codify this need to represent community works in a common mark. I want to be able to put a stamp on the work that I do within a community that identifies it to the world — that says: Me and a buncha folks made this and we’re proud of it. We did it not to make money but out of passion and love and because it’s in our nature to create without secondary purposes in mind.

And then let’s call it a Community Mark to make it clear what’s driving our purpose. It’s not trade — it’s the community, stupid! And from now on, if you want to create your own Community Mark, just slap a CM on your mark and hope for the best. Hell, we can’t enforce these things unless we hand them over to a broader community anyway — and since it’s really the community that owns the mark anyway, who better to look out for their wellbeing?

In software, trademark violations can not only keep a company from making money (e.g., Adobe doesn’t make money from various cracks of photoshop) but can actually COST them money — because, bizarrely, many of the people who use cracks of product X actually think that they can call up the maker of the uncracked product X and demand support. Even when told NO, the cost of those calls is real. For a $500 program it’s less hurtful, but consider games, where the cost to the publisher for the average service call is actually greater than the total per-copy expected profit from the $35 game.

I have still yet to see a single artist or original-content creator who can claim that Creative Commons provided them with even a remote benefit other than the thrill or realizing that some publisher has used their work in a commercial product (for the benefit of said publisher) without paying the creator a dime. Ooh, prestigious robbery.

In the end CC and CM will have some interesting court cases which will begin to finalize exactly what the laws and acceptance of these marks will be. But in general stated intent is critical when it comes to making a public record of a mark, so something like CM will go a long way to make it easy to put into place intent without having to spend $1000 on legal or when you want to slow others from trying to put a legal claim on that mark at a later point.

Of course if a very big company makes that later legal claim (even if they used the mark well after the CM) there can be a $$$ law suit to defend it. But that’s why we support EFF…

The premise of this argument strikes me as a bit strange. Why can a person have an “economic interest” (whatever that could be) in being sure community whatever was what it claimed to be? Economics is a social science that studies human behavior in the marketplace. There are many variatious of it based on different premises. It seems that you saying “make money.” Also, one way to look at law (one mentioned by the great pragmatist, Oliver Wendell Holmes), is that it provides a principled method of retribution for damages caused by others, an alternative to anarchy and personal vengence.

While such projects are a great source of amusement for people in wealthy countries during boom times, I don’t think that doing good works in a motivation for most people.